It is charming to think of Justice Kennedy as a "liberal." hard to imagine where that idea comes from. It is also sort of humorous to see the term "liberal" tossed about like McCarthy tossed about "communist" to describe any justice that you disagree with. This decsion may be Holmesean, in that it defers to local government (something I thought Joe Olson and others liked). But it is hard to think of Holmes as a liberal. He invented the "clear and present danger doctrine" to suppress free speech, supported sterilization, and supported segregation. Jumping from this case to discussing people being "enslaved" means that you have no clue about what slavery was -- and you forget that the most protective decision for property in America was Dred Scott v. Sandford, which said the constitution protects the rights of master to take their slaves wherever they want because slaves were protected property.
Whether the decision of the government in New London is wise or foolish might be a matter for debate. Just as we might disagree about whether the city of Comptonn California should have kept Walmart out of the city. But there are local political decisions. I find it ironic that law professors and others who are big on fedrealism and states' rights, and fearful of "big government" are unhappy with this decision. This is after all, a decision that allows the state to experiment with what it is needed to stimulate economic development at the local level, while at the same time fully compensating the proeprty owner for the property taken for public use.
Instead of reading your own propaganda about this case and repeating heated rhetoric that is only marginally on point, it might be good to actually look at the facts of the case and what was decided.
-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189
918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Joseph E. Olson wrote:
Once Again, The Liberals On The Supreme CourtShow Their Contempt For the Constitution
Everyone and their brother is blogging about this abomination, Kelo v. City of New London (2005). The liberal end of the Court upheld the City of New London condemning private property so that it could be sold to a private corporation to "revitalize" a decaying part of the city. The plaintiffs challenged this as violating the Fifth Amendment guarantee that private property would only be taken for public purposes.
The opinion of the Court is relying on a bunch of precedents that take the position that "public use" should be construed quite broadly--even when the immediate and probably greatest beneficiary of the taking is a private business. The precedents are embarrassing cases, from a time when corporations weren't content to buy what they wanted--they insisted on having the government take it for them from people that weren't prepared to sell--or at least, not at a price that the corporation was prepared to pay.
If you aren't a property owner, consider this analogy: you believe that you labor is worth $10 per hour. You aren't prepared to work for less. A corporation decides that your labor is essential to what they are doing, but they aren't prepared to pay you $10 per hour--so they have the government draft you, and pay you a private's wages--and assign you to work for that corporation, arguing that the corporation's products would enhance the overall economy. You would properly recognize that you had been enslaved.
My contempt for the liberal end (or is that the back end?) of the Court grows everyday. There are rights that are explicitly contained in the Constitution, such as this guarantee about private property only being taken for public use--and the Court rationalizes a way around it. The same bunch, however, finds a right to have homosexual sex--a right that is, at best, implicit. What's the point of a written Constitution if the rights that are explicitly there get ignored, and rights that no one bothered to get approved by Congress and ratified by the states, are upheld?
A few weeks back, the liberals on the Supreme Court (plus, inexplicably, Justice Scalia) told us that federal marijuana law applies in the Raich case because drugs that are grown and used at home affect interstate commerce, and if we aren't happy about it, we the people can use the democratic process to fix this problem. But the same hypocrites decided in Lawrence that the completely implicit right (one contradicted by the historical evidence) to have homosexual sex is so important that the people can't be trusted to make laws.
These same liberals find that the First Amendment protects virtual child pornography--but not political advertising. There seems to be nothing beyond the imagination of the liberals on the Supreme Court, intent on becoming an unelected superlegislature.
A few months back, Professor Randy Barnett was full of optimism about some sort of libertarian revolution going on at the Supreme Court. Of course, there is nothing of the sort happening, and it was obvious at the time. The liberals on the Court think homosexuality is really cool, so they struck down a law that they didn't like. They may feel the same way about marijuana, but the liberals recognized that much of federal regulation of business, gun ownership, and a swarm of other liberal warm and fuzzies would be endangered by striking down federal enforcement of the Controlled Substances Act.
Here the liberals had a pretty clear example of a too cozy relationship between corporations with political influence and a local government. Rather than recognize and deplore the sleazy history of the precedents on this, and take the side of the individual against a wealthy and well-connected corporation, the liberals chose to violate the original intent of the Fifth Amendment, so as to preserve governmental power.
There is no convincing common thread to these decisions. Stare decisis? In Kelo, sure, but not in Lawrence. A results-oriented concern about governmental power versus individual rights? In Lawrence, but not in Kelo or McConnell et. al. v. Federal Election Commission et. al. (2003). A scrupulous respect for original intent? Clearly not the case in Lawrence, or McConnell, and arguably not in Kelo. Deference to the people and their elected representatives? Sure, in Kelo and McConnell, but not in Raich or Lawrence. This is simply the liberal end of the Court imposing its desire to write the laws.******************************************
Professor Joseph Olson; J.D., LL.M.
Hamline University School of Law
St. Paul, Minnesota 55104-1284
tel. (651) 523-2142
fax. (651) 523-2236
<[EMAIL PROTECTED]>
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